Opinion issued September 15, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00014-CR ——————————— EX PARTE JOSE E. DUQUE, Appellant
On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1363049-A
MEMORANDUM OPINION
Appellant, Jose E. Duque (“Duque”), appeals from the denial of his post-
conviction application for a writ of habeas corpus. Duque, in his sole issue,
contends that his plea counsel’s failure to provide accurate immigration advice,
required under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), resulted
in ineffective assistance of counsel in violation of the Sixth Amendment and, as a result, rendered his 2012 guilty plea involuntary. We hold that the trial court acted
within its discretion in denying the application and affirm.
BACKGROUND Duque, a native of Honduras, entered the United States in 1997 and obtained
lawful permanent resident status on March 19, 2011. On October 1, 2012, Duque
was charged with the third-degree felony offense of assault of a family member—
impeding breathing. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), (b)(2)(B) (West
Supp. 2014). On October 8, 2012, Duque, through his plea counsel, Raul
Rodriguez, pleaded guilty pursuant to an agreement that the prosecutor would
recommend that Duque receive two years deferred adjudication and be assessed a
$200.00 fine. See TEX. PENAL CODE ANN. § 12.34 (West Supp. 2014).
On October 8, 2012, the trial court deferred making any finding on Duque’s
guilt, ordered Duque be placed on deferred adjudication community supervision
for two years, and assessed a $200.00 fine. See TEX. CODE CRIM. PROC. ANN. art.
42.12, §§ 3(b), 5(a) (West Supp. 2014). The record shows that Duque waived his
right to have a court reporter record the plea hearing.1
On April 22, 2013, the U.S. Department of Homeland Security initiated
removal proceedings against Duque by issuing a Notice to Appear before an 1 Because the clerk’s record did not contain the guilty plea or plea admonishment papers, the trial clerk filed a supplemental clerk’s record on June 25, 2015, after the Clerk of this Court requested those documents. One of the Statement and Waivers of Defendant, initialed by Duque, states that he waived the right to have the court reporter record his plea. 2 immigration judge. The Notice to Appear stated that Duque was recently adjusted
to lawful permanent resident status, but that his October 8, 2012 conviction for the
felony crime of assault of family/house member—impeding breathing, which was
committed against the complainant, a person protected from domestic violence by
the laws of any state, rendered him removable. Soon afterwards, U.S.
Immigrations and Customs Enforcement (“ICE”) apprehended Duque, placed him
on an immigration hold, and instituted deportation/removal proceedings.
ICE charged that Duque was subject to removal from the United States,
apparently under sections 237(a)(2)(A)(i) and 237(a)(2)(E)(i) of the Immigration
and Nationality Act (“INA”). Section 237(a)(2)(A)(i) provides that:
Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
8 U.S.C.S. § 1227(a)(2)(A)(i) (LexisNexis 2007 and Supp. 2014). Also, Section
237(a)(2)(E)(i) provides that:
Any alien who at any time after admission is convicted of a crime of domestic violence, . . . is deportable. For purposes of this clause, the
3 term “crime of domestic violence” means any crime of violence . . . by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
8 U.S.C.S. § 1227(a)(2)(E)(i) (LexisNexis 2007 and Supp. 2014).
The Attorney General of the United States “may cancel removal in the case
of an alien who is inadmissible or deportable from the United States if the alien (1)
has been an alien lawfully admitted for permanent residence for not less than 5
years, (2) has resided in the United States continuously for 7 years after having
been admitted in any status, and (3) has not been convicted of any aggravated
felony.” 8 U.S.C.S. § 1229b(a) (LexisNexis 2007 and Supp. 2014). On March 24,
2014, Duque claimed that the immigration judge denied his application to cancel
removal and ordered him removed.
On May 19, 2014, Duque, through habeas counsel Octavio M. Rivera, filed
an application for a writ of habeas corpus, under Texas Code of Criminal
Procedure article 11.072. Duque claimed that his plea counsel, Rodriguez,
provided ineffective assistance of counsel by failing to advise him about the
immigration consequences of his plea, as required under Padilla, 559 U.S. at 374,
130 S. Ct. at 1486, and thus, rendered his plea involuntary. Duque submitted an
affidavit stating that Rodriguez did not advise him that his removal was “virtually
mandatory” as a result of his conviction. Duque stated that he was put in removal
4 proceedings as a result of his conviction, he found out during removal proceedings
that he was not eligible to apply for any discretionary relief, and he was ordered to
be removed on March 24, 2014. Duque’s affidavit further alleged that if he had
known that his guilty plea would have made his deportation virtually mandatory or
that he would not qualify for discretionary relief, he would not have pleaded guilty
and would have gone to trial.
Duque also submitted an affidavit from his plea counsel, Raul Rodriguez.
Rodriguez’s affidavit stated that, because he was unaware that assault of a family
member—impeding breathing was considered a crime involving moral turpitude or
domestic violence for immigration purposes such that it would make Duque
subject to automatic deportation, he “did not inform Mr. Duque of it.” Rodriguez’s
affidavit further stated that, because he was unaware that a crime involving moral
turpitude within the seven-year period after admission would prevent a legal
permanent resident from applying for cancellation of removal during removal
proceedings, he “did not inform Mr. Duque of it.”
The Habeas Court’s Hearing and Findings of Fact and Conclusions of Law Before denying appellant’s habeas application on November 21, 2014, the
trial judge stated that she had reviewed the affidavits attached to Duque’s habeas
application, the evidence presented at the writ hearing, and official court records in
the underlying proceeding. The court held a writ hearing on September 23 and
5 October 2, 2014, in which Duque’s immigration law expert, Mayda Gil de
Lamadrid, his plea counsel, Raul Rodriguez, and Duque testified.
Although Rodriguez testified that he had informed Duque that he could be
deported because of his guilty plea, Rodriguez was unaware that because the crime
involved moral turpitude that Duque was automatically going to be put into
removal proceedings. The trial judge noted during Rodriguez’s testimony at the
writ hearing that she recalled asking Rodriguez at the 2012plea hearing whether
Duque was a permanent resident and informing Duque he could be deported, both
of which Rodriguez confirmed. The trial judge noted that it was her handwriting
on one of Duque’s plea papers, filed on October 8, 2012, and attached as an exhibit
to the findings and conclusions, that stated, “Per attorney, [defendant] is permanent
resident. Defendant understands he could be deported.”
Duque, via a Spanish interpreter, testified that Rodriguez told him that he
could be removed following his guilty plea, but not that the immigration authorities
were going to arrest him and seek to deport him automatically. The trial court did
not permit the State to cross-examine Duque regarding whether he thought there
was a strong case against him or not. Duque further testified on cross-examination
that he was taken into immigration custody immediately after he pleaded guilty in
October 2012.
6 The responding Houston Police Department Officer Kevin Truong and Tim
Ballengee, the assistant district attorney (ADA) at Duque’s 2012 plea hearing,
testified for the State. At the end of the writ hearing, although stating that she
“th[ought] it [was] a close call,” the trial court recommended denying the writ on
the record and requested the State and Duque’s writ hearing counsel, Mr. Rivera,
to prepare proposed findings of fact and conclusions of law.
On November 21, 2014, the trial court signed the State’s proposed findings
of fact and conclusions of law, and order. The court made the following findings
of fact and conclusions of law:
FINDINGS OF FACT 1. The Court finds that the applicant was convicted on October 8, 2012, out of the 184th District Court, Harris County, Texas, in cause number 1363049, where the applicant entered a plea of guilty to the third degree felony offense of Assault- Family Member/Impeding Breath. However, the Court withheld a finding of guilt and the applicant was sentenced to a 2 year Deferred Adjudication and a $200.00 fine. . . .
2. The applicant did not directly appeal his conviction. 3. On March 8, 2013, the Court filed a Motion to Adjudicate on the applicant due to his admission to probation staff that he had consumed alcohol on February 17, 2013. . . .
4. On April 2, 1013, the Court amended the applicant’s Deferred Adjudication conditions by giving the applicant 25 days jail therapy and adding 2 Alcohol Anonymous meetings a week.
5. The State dismissed the Motion to Adjudicate on April 2, 2013, after additional conditions were added to the applicant’s Deferred Adjudication. . . . 7 6. On April 2, 2014, the Court filed a second Motion to Adjudicate due to the applicant not reporting to his Community Supervision Officer as ordered. . . .
7. The Court finds that the applicant is currently on deferred adjudication.
8. The Court finds, based on the application, that the applicant is a legal permanent resident in the United States.
9. The Court finds based on the court reporter’s record that the applicant was properly admonished and informed of the potential immigration consequences of his plea consistent with TEX. CODE CRIM. PROC. Art. 26.13.
10. The Court finds, based on the clerk’s record, that on the face of the applicant’s plea agreement with the State that he was admonished: “by the Court and the defense attorney that if he is in the USA illegally or is not a US citizen, he/she may be deported back to his/her country. The defendant also acknowledged in open court that neither their attorney2 nor anyone else has indicated or promised otherwise.” 11. The Court finds that the applicant was represented by Mr. Raul Rodriguez (“Rodriguez”) in his primary case. 12. The Court finds that the testimony offered by the applicant’s previous attorney, Raul Rodriguez, was credible.
13. The Court finds based on the credible testimony of Rodriguez, that Rodriguez was aware that the applicant was not a United States citizen.
14. The Court finds based on the Court reporter’s record of Rodriguez [sic] that Rodriguez informed the applicant that a
2 The general admonishments state, in pertinent part, with Duque’s initials indicating that he understood them, that “if you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense with which you are charged in this case may result in your deportation, or your exclusion from admission to this country, or your denial of naturalization under Federal law.” 8 conviction could result in the applicant’s potential deportation from the country.
15. The Court finds based on the Court reporter’s record of Rodriguez [ s i c ] that while taking the applicant’s plea the Court confirmed that Rodriguez had informed 3the applicant that he could be deported based upon the plea. . . .
16. The Court finds that the testimony from Harris County Assistant District Attorney, Tim Ballengee, [is] credible.
17. The Court finds, based on the Court reporter’s record, that the testimony of Tim Ballengee referring to admonishments and immigration consequences given at the time the applicant took his plea [is] credible.
18. The Court finds that the testimony given by Officer K. Truong, referring to the strength of the State’s case against the applicant [is] credible.
19. The Court finds, based on the totality of the evidence presented, assertions made, and the testimony given that the applicant was not credible.
20. The Court finds the applicant’s assertion that he would not have pled guilty but for the alleged deficient conduct but would have insisted on going to trial is not credible.
21. The Court finds that the applicant’s plea was voluntary.
22. The Court finds that the assertion made by applicant that he was automatically deported following his voluntary plea, [is] not credible.
23. The Court finds that the applicant entered his plea agreement on October 8, 2012.
3 The trial judge was referring to the writ hearing record when she confirmed that Rodriguez had told her that Duque was a permanent resident and that Duque was informed that he could be deported. As noted above, the trial judge confirmed that it was her handwriting on one of Duque’s plea papers, attached as an exhibit to the findings and conclusions, that stated, “Per attorney, [defendant] is permanent resident. Defendant understands he could be deported.” 9 24. The Court finds that deportation proceedings were not initiated until April 22, 2013. . . .
25. The Court finds based on the Court reporter’s record, and consistent with the Court’s previous ruling, the applicant’s writ is denied.
CONCLUSIONS OF LAW 1. The applicant fails to show that counsel’s conduct fell below an objective standard of reasonableness and that, but for trial counsel’s alleged deficient conduct, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland standard).
2. The totality of the representation afforded the applicant was sufficient to protect his right to reasonably effective assistance of counsel in the primary case.
3. The applicant fails to show that his initial guilty plea was unlawfully induced, made involuntarily, or made without an understanding of the nature of the charge against him and the consequences of his plea.
4. The applicant fails to overcome the presumption that his initial guilty plea was knowingly and voluntarily made. Wilson v. State, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985).
5. In all things, the applicant has failed to demonstrate that his conviction was improperly obtained.
10 Duque filed his notice of appeal from the denial of his habeas application in
the trial court on November 24, 2014.4 After this Court abated the appeal because
the clerk’s record did not contain the trial court’s certification of the right of
appeal, the trial clerk filed a supplemental clerk’s record on May 29, 2015,
containing the trial court’s certification that Duque has the right of appeal from the
denial of his habeas application.
DISCUSSION In his sole issue, Duque asserts that the trial court abused its discretion in
denying his habeas application because he received ineffective assistance of
counsel. He claims that, because his plea counsel failed to advise him of the
immigration consequences of his 2012 guilty plea, in violation of Padilla, 559 U.S.
at 374, his guilty plea was rendered involuntary.
A. Standard of Review “An applicant seeking habeas corpus relief on the basis of an involuntary
guilty plea must prove his claim by a preponderance of the evidence.” Kniatt v.
State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see also Ex parte Mandujano,
No. 01-12-00922-CR, 2013 WL 4007801, at *3 (Tex. App.—Houston [1st Dist.]
Aug. 6, 2013, no pet.) (mem. op., not designated for publication). The applicant
4 On January 8, 2015, the trial clerk filed an affidavit in this Court stating that there had been a delay in forwarding and processing Duque’s notice of appeal which, in turn, delayed the forwarding of the appeal to this Court. The Clerk of this Court did not receive Duque’s notice of appeal until January 7, 2015. 11 bears the burden to establish that a reasonable probability exists that, but for
counsel’s advice, he would not have pleaded guilty and would have insisted on
going to trial. See Ex parte Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012,
pet. ref’d). Further, the applicant must show that a decision to reject the plea
bargain would have been rational under the circumstances. See id. (citing Padilla,
559 U.S. at 372, 130 S. Ct. at 1485).
When reviewing a trial court’s ruling on a habeas corpus application, we
view the evidence presented in the light most favorable to that ruling, and we must
uphold that ruling absent an abuse of discretion. See Ex parte Mandujano, 2013
WL 4007801, at *3 (citing Ex parte Ali, 368 S.W.3d at 831). We “afford almost
total deference to a trial court’s fact findings in habeas proceedings, especially
when those findings are based upon credibility and demeanor.” Ex parte
Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White,
160 S.W.3d 46, 50 (Tex. Crim. App. 2004)). We similarly defer to the trial court’s
application of the law to the facts if that resolution turns upon credibility and
demeanor determinations. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). If the resolution of the ultimate question turns on an application of
law, we review the determination de novo. See Ex parte Mandujano, 2013 WL
4007801, at *3 (citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.
12 App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d
335, 371 (Tex. Crim. App. 2007)).
In an article 11.072 habeas case, the trial judge is the sole finder of fact. See
Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d) (citing Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011)). An
appellate court reviews the evidence presented in the light most favorable to the
trial court’s ruling, regardless of whether the court’s findings are implied or
explicit, or based on affidavits or live testimony, provided they are supported by
the record. See Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston
[14th Dist.] 2013, no pet.).
Nevertheless, while we give deference to any underlying historical fact
determinations made by the habeas court, we review the ultimate question of
prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),
de novo. See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005); Ex
parte Murillo, 389 S.W.3d at 927. We will uphold the habeas court’s judgment as
long as it is correct under any theory of law applicable to the case. See Ex parte
Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam); Ex parte
Murillo, 389 S.W.3d at 926.
13 B. Applicable Law In Padilla, the Supreme Court held that the Sixth Amendment requires an
attorney for a criminal defendant to provide advice about the risk of deportation
arising from a guilty plea. 559 U.S. at 374, 130 S. Ct. at 1486. Counsel’s
performance is deficient if counsel fails to advise a noncitizen client about
deportation consequences that are “truly clear.” Padilla, 559 U.S. at 369, 130
S.Ct. at 1483; see also Ex parte Altobji, No. 01-14-01008-CR, 2015 WL 505202, at
*2 (Tex. App.—Houston [1st Dist.] Feb. 5, 2015, no pet.) (per curiam) (mem. op.,
not designated for publication). “When the law is not succinct and
straightforward,” however, counsel “need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse immigration
consequences.” Padilla, 559 U.S. at 369, 130 S.Ct. at 1483; see also Ex parte Pho
Ri Ma, No. 01-14-00462-CR, 2014 WL 4783007, at *2 (Tex. App.—Houston [1st
Dist.] Sept. 25, 2014, pet. ref’d) (mem. op., not designated for publication).
Because Duque entered his plea in 2012 after Padilla was decided, Padilla applies
here. See Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013); see also Ibarra
v. State, 445 S.W.3d 285, 287 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d);
Ex parte Mandujano, 2013 WL 4007801, at *2.
The two-pronged Strickland test applies to challenges to guilty pleas, such as
the one in the present case, premised on ineffective assistance of counsel. See Ex
14 parte Obi, 446 S.W.3d at 596 (citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct.
366, 370 (1985)). Thus, to be entitled to relief, appellant was required to show by
a preponderance of the evidence that (1) trial counsel’s performance fell below the
objective standard of reasonableness and (2) there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068.
“‘In the Padilla context, when the prejudice prong of the Strickland test is
dispositive, we need address only that prong on appeal.’” Ex parte Obi, 446
S.W.3d at 596 (quoting Ex parte Murillo, 389 S.W.3d at 927). We make the
prejudice inquiry on a case-by-case basis, considering the circumstances
surrounding the plea and the gravity of the alleged failure. Id. (citation omitted).
“‘[I]t is not necessary to determine whether trial counsel’s representation was
deficient if appellant cannot satisfy the second Strickland prong.’” Id. (quoting Ex
parte Murillo, 389 S.W.3d at 927).
C. Analysis Duque contends that the habeas court erred in denying him relief because
Rodriguez failed to advise Duque that his deportation was virtually mandatory, as
required by Padilla, 559 U.S. at 369, and he asserts that he would have insisted on
going to trial had he known that he faced mandatory deportation following his
guilty plea. The State contends that Rodriguez provided adequate assistance by 15 informing Duque that he may be deported after his guilty plea and that, in any
event, he failed to establish prejudice.
As noted above, there is no need to analyze the first Strickland prong if the
second prong, prejudice, is dispositive. See Ex parte Obi, 446 S.W.3d at 596
(citation omitted). “The central question under the second [Strickland] prong is
whether it would have been rational under the circumstances for the applicant to
reject the plea bargain.” Id. (citations omitted). We examine whether Duque’s
insistence on a trial would have been rational under the circumstances in light of
the following four factors: (1) whether there is evidence of the applicant’s guilt,
(2) whether the applicant had any factual or legal defenses, (3) whether
immigration status was his primary concern, and (4) how the plea deal compared to
the penalties risked at trial. Id. at 597 (citation omitted).
With respect to the first factor, evidence of guilt, the trial court found Officer
Truong’s testimony, referring to the strength of the State’s case against Duque,
credible. We defer to the trial court’s credibility findings on this issue. See Ex
parte Amezquita, 223 S.W.3d at 367. The evidence developed at the writ hearing
supported the trial court’s finding No. 18 that the State had strong evidence,
because Officer Truong testified that he spoke with the complainant, and the
complainant’s son who witnessed the altercation, and Officer Truong observed
visible marks on the complainant’s neck, all of which would likely have secured a 16 conviction. Thus, the first factor weighs strongly in favor against a finding of
prejudice because there was substantial evidence of Duque’s guilt.
As for the second factor, we consider whether Duque had a defense to the
charged offense. See Ex parte Obi, 446 S.W.3d at 598 (citations omitted). Duque
did not raise any allegations in his affidavit regarding whether he thought he had a
defense, other than to state that his family had hired Rodriguez to represent him
because he wanted to go to trial. The trial court, at the writ hearing, did not permit
the State to cross-examine Duque regarding whether he thought there was a strong
case against him or not. However, the trial court found that Duque’s plea was
voluntary and that he failed to show that it was unlawfully induced or made
without an understanding of the nature of the charge against him and the
consequences of the plea. As noted above, we must defer to the trial court’s
factual findings. See Ex parte Amezquita, 223 S.W.3d at 367. Thus, this second
factor weighs against a finding of prejudice. See Ex parte Obi, 446 S.W.3d at 598.
With respect to the third factor—immigration status as primary concern—
courts consider whether the applicant presented evidence indicating that the
immigration consequences of his plea were his paramount concern. See Ex parte
Obi, 446 S.W.3d at 598. “‘An applicant’s failure to express concerns about
immigration consequences after receiving repeated warnings weighs against
finding prejudice.’” Id. (quoting Ex parte Murillo, 389 S.W.3d at 930). Duque’s 17 statements, in his affidavit and at the writ hearing, that he would have insisted on
going to trial if he knew that the guilty plea would have made his deportation
virtually mandatory, were made after-the-fact. There was no evidence that Duque
expressed these concerns before pleading guilty, despite receiving multiple
warnings about possible immigration consequences from both Rodriguez and the
trial judge. See Ex parte Obi, 446 S.W.3d at 598 (citation omitted).
Moreover, at the writ hearing, Duque and his plea counsel, Rodriguez,
disputed whether Rodriguez had properly advised Duque about the effect of a
guilty plea on his immigration status. The trial court found that, based on the
clerk’s record, on the face of the plea agreement, Duque was admonished by the
court and the defense attorney at the time of his plea that if he was not a U.S.
citizen, that he may be deported back to his country. Similarly, the trial court
found that the testimony offered by Rodriguez was credible, that Rodriguez was
aware that Duque was not a U.S. citizen, and that both Rodriguez and the court had
informed Duque that a conviction could result in his deportation.
Furthermore, the trial court found ADA Ballengee’s testimony, referring to
the admonishments and immigration consequences that were given at the time of
Duque’s plea, credible. The trial court found that Duque’s assertion that he would
not have pleaded guilty, but for the alleged deficient conduct by his plea counsel
and would have insisted on going to trial, was not credible. Finally, the trial court 18 found that Duque’s other assertion, that he was automatically deported following
his voluntary plea, was not credible because he entered his plea agreement on
October 8, 2012, and deportation proceedings were not initiated until April 22,
2013. The trial court did not credit Duque’s self-serving testimony and, given the
conflicting evidence, was free to disregard it. See Ex parte Obi, 446 S.W.3d at 599
(citation omitted). As noted above, we must defer to the trial court’s finding on
these issues, as their resolution turns on an evaluation of the witnesses’ credibility
and demeanor. See Ex parte Amezquita, 223 S.W.3d at 367. Therefore, this third
factor weighs against a finding of prejudice.
Finally, with respect to the fourth factor—how the plea deal compared to the
penalties risked at trial—we consider three additional subfactors: (1) evidence
concerning the likelihood of success at trial, (2) evidence presented by the
applicant that some other plea deal would have helped him avoid negative
immigration consequences, and (3) evidence presented by the applicant regarding
the likelihood of obtaining probation if convicted at trial. See Ex parte Obi, 446
S.W.3d at 599 (citation omitted). As noted above, Duque was charged on October
1, 2012 with the third-degree felony offense of assault of a family member—
impeding breathing. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), (b)(2)(B) (West
Supp. 2014). For the first risk subfactor, there was substantial evidence of
19 Duque’s guilt. Thus, the evidence concerning the likelihood of success at trial
favored the State. See Ex parte Obi, 446 S.W.3d at 600.
With respect to the second risk subfactor, Duque did not present any
evidence at the writ hearing or in his habeas application that some other plea deal
would have helped him avoid negative immigration consequences. If convicted
after trial of a third-degree felony, Duque faced a minimum of two years and a
maximum of ten years in prison and up to a $10,000.00 fine. See TEX. PENAL
CODE ANN. § 12.34 (West Supp. 2014). The terms of Duque’s favorable plea
bargain included no jail time in exchange for the trial court placing him on two
years deferred adjudication and assessing a $200.00 fine.
Similarly, as for the third, and final, risk subfactor, the likelihood of
obtaining probation if convicted after trial, although Duque may have been eligible
for probation if convicted after trial, he failed to present any such evidence that
probation was likely. See Ex parte Obi, 446 S.W.3d at 600. More importantly, if
Duque were convicted at trial, he likely faced deportation regardless of whether he
received probation. See id. Thus, we conclude that the penalties risked at trial,
where Duque faced a significant likelihood of conviction with a minimum of two
years’ prison time, weigh against finding that Duque was prejudiced by his plea
deal. See id. (citations omitted).
20 Consequently, after considering these four factors and giving appropriate
deference to the trial court’s findings of fact that Duque’s plea counsel, Rodriguez,
was credible and that Duque was not credible, we conclude that the trial court did
not err in (1) finding Duque’s testimony not credible and rejecting his assertion
that he would have insisted on going to trial had he known that he faced mandatory
deportation after pleading guilty; and (2) concluding that it would not have been
rational for Duque to reject a plea deal under the circumstances. See Ex parte Obi,
446 S.W.3d at 600. Therefore, we hold that the trial court did not err in concluding
that Duque failed to carry his burden of showing that, with respect to the second
prong of Strickland, but for the alleged deficient conduct by plea counsel, there
was a reasonable probability that he would have gone to trial. See id. (citing, inter
alia, Ex parte Murillo, 389 S.W.3d at 931–32) (“Aside from applicant’s own self-
serving statement that he would have insisted his counsel take his case to trial had
he known he would be deported, he presented no other evidence corroborating his
position that it would have been rational to reject a plea deal under the
circumstances.”); see also Ex parte Mandujano, 2013 WL 4007801, at *4 (holding
that, with respect to second prong of Strickland, record supports trial court’s
finding that applicant opted for plea because, among other reasons, he did not want
to risk going to jail, and failed to prove that he would have rejected plea and gone
21 to trial, but for any faulty advice). Accordingly, we hold that the trial court acted
within its discretion in denying Duque habeas relief and we overrule his sole issue.
CONCLUSION
We affirm the order of the trial court denying habeas relief.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).